State Pays $15.4 Million After Trail Sign Channeled Two Visitors Off a 300-Foot Cliff

On December 19, 2006, Elizabeth Warke Brem and her cousin Paula Andrea Gonzalez Ramirez arrived at Waialua River State Park on Kauai, intending to see Opaeka'a Falls. Brem, 35, was a partner at Gibson Dunn and Crutcher in Orange County, where she focused on securities litigation. Ramirez, 29, had traveled from Bogota, Colombia. They followed the trail until they reached a fork.

At the entrance to the left path, state employees had posted a sign reading "Danger. Keep out. Hazardous conditions." The right path had nothing: no sign, no fence, no barrier. With the left side marked off-limits, Brem and Ramirez turned right. That trail ended at a sheer cliff obscured by heavy vegetation, dropping 300 feet. Both women fell to their deaths.

Davis Levin Livingston filed a wrongful-death action on behalf of Brem's family. Discovery revealed the state had known about the hazard for years before the accident. In 2003, a Department of Land and Natural Resources officer who visited the area saw hikers scrambling toward the bottom of the falls, recognized the danger, and reported it to his superiors, who recommended fencing, blocking off the area, and posting warning signs. None of that was done. No fencing or warning signs were ever placed near the right-hand path in the three years before the two women arrived.

Kauai Circuit Judge Kathleen Watanabe issued a liability ruling finding the state totally at fault. Her conclusion was pointed: state employees "put visitors at greater risk by erecting the sign than if they had done nothing at all." Closing off the left path without any corresponding warning on the right created a false channel toward the cliff.

With liability resolved by the court, the parties settled before a damages hearing. In March 2012, the State of Hawaii agreed to pay $15.4 million. Brem's estate received $15 million, a figure reflecting her earnings as a senior partner at a major firm. Ramirez's family received $425,000. The ABA Journal described the result as potentially the largest personal-injury settlement in Hawaii history. The agreement required approval from the state Legislature.

Following the litigation, the state installed warning signs and fencing at the site. Mark Davis and Loretta Sheehan of Davis Levin Livingston represented Brem's estate throughout the proceedings.